Citation Nr: 1550834
Decision Date: 12/03/15 Archive Date: 12/10/15
DOCKET NO. 08-06 736 ) DATE
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THE ISSUE
Whether a March 16, 2015, decision of the Board of Veterans' Appeals (which found no clear and unmistakable error in the Board's September 27, 1993, decision) should itself be revised or reversed on the grounds of clear and unmistakable error (CUE).
REPRESENTATION
Moving party represented by: Idaho Division of Veterans Services
ATTORNEY FOR THE BOARD
P. Childers, Counsel
INTRODUCTION
The Veteran (Movant) served on active duty from April 1984 to April 1985. He also served in the Army National Guard, including a period of active duty for training (ACDUTRA), from December 1977 to April 1978.
This matter is before the Board of Veterans' Appeals (Board) as an original action on the motion of the Veteran, in which he alleges CUE in a March 16, 2015, Board decision, which found that there was no CUE in a September 1993 Board decision.
[PLEASE NOTE that the Board is separately addressing six claims that are also in appellate status (involving entitlement to service connection, compensation under 38 U.S.C.A. § 1151, and total disability rating based on individual unemployability due to service-connected disability (TDIU).]
FINDINGS OF FACT
1. In a decision dated March 16, 2015, the Board found that there was no CUE in a September 1993 Board decision.
2. In April 2015 the Movant filed for revision of the March 16, 2015, Board decision on the basis of CUE.
3. The Board's March 16, 2015, decision correctly considered the facts as they were known at the time of the Board's September 27, 1993, denial of service connection for residuals of fractures of both legs, a right hand disorder, eczema, and cerebral arteriosclerosis; and correctly applied the statutory and regulatory provisions extant at the time.
4. The Board's March 16, 2015, decision was done in compliance with the applicable statutory and regulatory provisions in effect in March 2015.
CONCLUSION OF LAW
The criterion (clear and unmistakable error) for reversal or revision of the March 16, 2015, Board decision is not found. 38 U.S.C.A. § 7111 (West 2014); 38 C.F.R. §§ 20.1400-20.1411 (2015).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Movant requests that a March 16, 2015, Board decision, which determined that there was no CUE in a September 27, 1993, Board decision, be revised or reversed on the grounds of CUE.
At the time of the March 16, 2015, Board decision, applicable law provided that all final Board decisions are subject to revision under this subpart except (1) decisions on issues which have been appealed to and decided by a court of competent jurisdiction; and (2) decisions on issues which have subsequently been decided by a court of competent jurisdiction. 38 C.F.R. § §20.1400(b).
Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a) (March 16, 2015).
Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b) (March 16, 2015).
To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403(c) (March 16, 2015). Examples of situations that are not clear and unmistakable error include (1) changed diagnosis; i.e., a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) failure of the duty to assist (the Secretary's failure to fulfill the duty to assist); and (3) disagreement over the evaluation of evidence, i.e., a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d) (March 16, 2015).
Clear and unmistakable error also does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e) (March 16, 2015).
Motions filed under this subpart are not appeals and, except as otherwise provided, are not subject to the provisions of Part 19 of Title 38 or those sections of Part 20 that relate to the processing and disposition of appeals. 38 C.F.R. § 20.1402 (March 16, 2015).
Facts and Analysis
In his April 2015 allegation of CUE the Movant argued that the judge in the March 2015 decision had advised him, during his Board hearing, that his case would be reviewed by a panel and not a single person. He also contends that the Board, in its March 2015 denial of CUE in the September 1993 Board decision, did not consider the facts and law as they existed in September 1993. On review of the record the undersigned finds no such error.
First, there is no mention of any panel decision during the 2014 Board hearing. See Transcript. Moreover, this matter was heard by only one judge, so a panel decision was not warranted (see 38 C.F.R. § 20.707). Finally, there is no legal requirement that a decision regarding CUE in a prior Board decision be issued by a panel of judges. The undersigned accordingly finds that this argument is without merit.
The undersigned further finds that the Movant's contention that that the facts and law as they existed at the time of the September 1993 Board decision were not properly applied is also without merit. Review of the record reveals that the March 2015 decisionmaker carefully pointed out that the Movant had already appealed the Board's September 27, 1993 decision to the United States Court of Veterans Appeals (now known as the Court of Appeals for Veterans Claims (Court)); and that the Court had affirmed the following actions taken by the Board in its September 27, 1993 Board decision:
1. A finding of CUE in the RO's May 16, 1986, administrative decision's grant of service connection for an injury sustained to the left side of the face;
2. A finding of CUE in the RO's June 23, 1986, rating decision's grant of service connection for residuals of the injury to the left side of the face with depressive fracture of the left zygoma;
3. Denial of service connection for a seizure disorder;
4. Denial of service connection for a chronic headache disorder;
5. Denial of service connection for a lumbar spine disorder;
6. Denial of service connection for a cervical spine disorder;
7. Denial of service connection for chronic bronchitis; and
8. Denial of a total disability rating for compensation based on individual unemployability).
The Board then correctly pointed out that it has no jurisdiction over the Court or its decisions.
As for the remaining four issues that were denied by the Board in September 1993 (namely, service connection for residuals of fractures of both legs; service connection for a right hand disorder; service connection for eczema; and service connection for cerebral arteriosclerosis), the March 2015 Board decision first set out the applicable law that existed at the time of the Board's September 27, 1993, decision. The Board next carefully related the facts of each claim as they were in September 1993, and then explained why there was no CUE in the prior Board decision. The Board unequivocally stated, in the March 2015 Board decision, that the September 27, 1993, decision had correctly applied the statutory and regulatory provisions extant at that time; and stated that any error in the Board's 1993 decision in considering the correct facts or incorrectly applying the statutory and regulatory provisions, as they were known at the time, was not outcome determinative.
In sum, the Board's March 2015 finding of no CUE in the 1993 Board decision was, again, based on facts and law in existence at the time of the September 1993 Board decision; and it was done in complete compliance with applicable regulations. In compliance with 38 C.F.R. § 20.1403(b) (in effect in March 16, 2015), the Board correctly set out the applicable law at the time of the September 1993 Board decision; reviewed the facts that existed at the time of its September 1993 denial of service connection for residuals of fractures of both legs, a right hand disorder, eczema, and cerebral arteriosclerosis, and concluded, based on the law in effect at that time, that there was no error in the Board's September 1993 adjudication of the appeal.
The Board also carefully explained that the Court, in October 1996, had affirmed the Board's September 1993 finding of CUE in the RO's May 1986 administrative decision and June 1986 rating decision regarding the Veteran's left face disability, and had affirmed the Board's September 1993 denial of service connection for a seizure disorder, a chronic headache disorder, a lumbar spine disorder, a cervical spine disorder, chronic bronchitis, and TDIU; and explained that the Movant cannot now collaterally attack those issues because the Board has no jurisdiction to review any decision of the Court.
Accordingly, the undersigned finds no CUE in the Board's March 2015 finding of no CUE in the September 27, 1993, Board decision.
ORDER
The April 2015 motion for revision of the March 16, 2015, Board decision on the basis of clear and unmistakable error is denied.
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MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs